Criminal Procedure Bill, 1993: Report Stage (Resumed) and Final Stage.

We had been discussing amendment No. 2, which had been moved by Deputy De Rossa. A number of Members had contributed. The Minister of State at the Department of Justice, Deputy O'Dea, was in possession when the debate was adjourned last evening.

Debate resumed on amendment No. 2:
In page 3, between lines 30 and 31, to insert the following:
"2.—(1) The Government shall establish a Standing Committee of Inquiry (hereinafter referred to as ‘the Committee') to investigate all available facts and circumstances surrounding any conviction imposed by a court in the State and referred to it in accordance with section 3.
(2) The Committee shall be a tribunal within the meaning of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979.
(3) The Committee shall consist of at least three persons, one of whom shall be a practising barrister or solicitor of at least ten years standing.
(4) The Committee may receive such evidence and other information as it sees fit, whether or not that evidence or information is or would be admissible in a court of law.
(5) Having considered all the relevant facts the Committee shall submit a report to the Government for the purpose of enabling it to decide whether or not to advise the President to exercise the right of pardon conferred by Article 13.6 of the Constitution or to take such other action as it may consider appropriate.
(6) A report submitted to the Government by the Committee shall be published.".
—(Deputy De Rossa).

I will revert to what I had been saying about amendment No. 10 in the name of Deputy Gay Mitchell. On Committee Stage I undertook to have another look at that amendment to ascertain whether in the light of arguments advanced on Committee Stage, I could accept it. Unfortunately, I still have some difficulties with it.

First, may I refer briefly to the purpose of the provision as it stands? In section 3 (3) (a) the Court of Criminal Appeal is being given an important new power to order the Commissioner of the Garda Síochána to carry out inquiries to ascertain whether further evidence ought to be adduced. The court's role will be to adjudicate on the evidence presented to it and not to carry out the inquiry itself. There may be cases in which particular issues raised by the appellant or the prosecution cannot be resolved on the facts available and which the court may wish to have further investigated. The purpose of this provision is to enable the court to so order the Commissioner of the Garda Síochána to make the investigation.

What is at issue here is the duty of the Commissioner of the Garda Síochána to carry out specific inquiries ordered by the Court of Criminal Appeal. It will be up to the court to be satisfied that the investigations have been properly carried out by the Commissioner of the Garda Síochána and that they adequately answer the queries raised. The Commissioner of the Garda Síochána has the technical and forensic resources necessary to carry out any inquiry which the court is likely to suggest. He also has the necessary investigative expertise available to him. Clearly, he is the most appropriate, if not the only, person who could be asked to perform those functions. There may be a perception that when the court directs the Commissioner of the Garda Síochána to conduct an investigation, the purpose of that investigation somehow will be concerned with covering up some wrongdoing or mishandling of the case by the Garda themselves. This need not necessarily be the case and in practice might be the case only very occasionally. However, as I have said, because of the investigative role, expertise and resources of the Garda, they would be the obvious and correct body to undertake such an investigation. In those circumstances it is better that they report directly to the court rather than through an intermediary, whether or not that intermediary be the Attorney General.

The principle of the Garda investigating matters which concern their own operations, under independent supervision and in accordance with a statutory duty, is not new. It is already contained in the Garda Síochána (Complaints) Act, 1986. I am informed that its provisions are working well. As I have said, any investigations undertaken by the Commissioner of the Garda Síochána would be under the supervision of and in accordance with the instructions of the Court of Criminal Appeal. There is no reason to doubt the safety of such procedure.

It would be particularly inappropriate to appoint a person such as the Attorney General to carry out or oversee the investigations. While the Director of Public Prosecutions has taken over the prosecutorial functions of the Attorney General, there remains the possibility, whether under specific legislation or under the Prosecution of Offences Act, that certain prosecutorial functions could be allocated to the Attorney General. For example, individual statutes may, despite the Prosecution of Offences Act, 1974, allocate prosecutorial functions to the Attorney General. The Fisheries (Amendment) Act, 1978, has done so in relation to maritime fisheries offences. Under the Prosecution of Offences Act, 1974, the Government may, in the interests of national security, order that functions in relation to specified types of criminal matters shall return to the Attorney General.

I have the fullest confidence in the integrity and ability of the Garda Commissioner to carry out the orders of the court in a proper and efficient manner. Basically that is the reason I cannot accept the amendment.

I agree with the thinking behind Deputy Mitchell's amendment No. 11, the purpose of which is to extend the existing subsection (7) to provide for legal aid for an application under section 2. However, that situation is already provided for. I explained on Committee Stage that section 2 (2) provides that such an application shall be treated for all purposes — I stress those words — as an appeal to the court against conviction or sentence. The normal legal aid appeal certificate could therefore be granted where appropriate in such cases. Therefore, what the amendment seeks to correct is already provided for.

I should like to refer briefly to the debate which took place last evening. There were contributions from Deputies De Rossa, O'Donnell, Gay Mitchell and Michael McDowell. The contributions from the first three Deputies were reasonable and well informed. I empathise and sympathise with Deputy Mitchell, who has tabled most of the amendments. I have acquaintances and friends in his constituency and I know he is in close touch with his constituents and that he represents their interests in the best way he can. There are many things he wants to achieve by means of the amendments tabled which I too would like to do but, unfortunately, we live in a democracy and are subject to a written Constitution. Therefore, I am precluded by law from accepting many of those amendments. I certainly understand and sympathise with the thinking behind them.

There are a few points on which I would like to correct Deputy Mitchell. He suggested that the reason for the departure — I suggest slight departure — from the report of the Martin committee in this legislation was undue influence from the Judiciary. I repeat now what I said on Committee Stage. I have made inquiries as to whether the Judiciary tried to influence this legislation in any way and the answer I got was "no".

Deputy Mitchell referred to the rules of evidence. I take the point that in some cases the rules of evidence are not designed to bring out the truth as they have evolved and developed over the centuries. We are talking here about justice for the accused and about legislating in the interests of somebody who is imprisoned wrongly. The rules of evidence exist for one reason only, that is to protect the interests of an accused person: in other words, to prevent the balance tilting too much in favour of the State and of the prosecution.

Various Deputies said we had abandoned the Martin report, that we had turned it on its head and junked it. I contradict that in the strongest possible terms.

The Martin report made three main recommendations. First, it proposed that there should be a system to deal with miscarriages of justice in cases such as the Guildford Four in the United Kingdom and the Nicky Kelly case in Ireland and recommended that the person who was the victim of a miscarriage of justice should have a right to go back only before a tribunal. Second, it proposed that the Government proceed immediately to put in place a system for video recording of interviews with suspects. Third, it proposed that the Government introduce a statutory system of compensation for the victims of miscarriage of justice. We have accepted the third recommendation in its entirety and we are providing for it in legislation. We have accepted the second recommendation in its entirety and I fully acknowledge and agree with the point made by Deputy Gilmore on Committee Stage that we are very late in doing so. Nevertheless we are now beginning to put the process into operation, admittedly on a pilot basis. I have explained at length the reason it is being done in that way and the Martin committee agrees.

The first recommendation of the Martin committee was that somebody should have the right to go back before a tribunal. We agree with that recommendation and are providing for that right. I cannot agree with the committee's conclusion that they can only go back to a tribunal. We are providing an alternative whereby they can go back either to the court or to a tribunal. When they go back to a tribunal, the filtering mechanism will be the Minister for Justice who will decide whether the case is an appropriate one for a tribunal to be set up. I gave some examples on Committee Stage as to when this will operate. Obviously where some evidence in favour of the accused is inadmissible one cannot go back to court because courts cannot hear inadmissible evidence. That is not the only case that will be appropriate for a tribunal. There may be cases where a great deal of investigation and inquiry will be necessary. I am sure the Minister will consider that such a case should be appropriately referred to a tribunal. Instead of only allowing people to go back to one forum we are providing an alternative.

On the question of a pardon I repeat again what I said yesterday. I note that Deputy McDowell, who is obviously busy elsewhere while we are debating this issue, took to the airwaves this morning to compensate for the facts that he is too busy in the courts or whatever to come here today.

That is an unworthy comment.

Much of what Deputy McDowell said last evening was very unworthy and I will demonstrate the reason. Deputy McDowell took to the airwaves this morning and made all sorts of suggestions that I was being unfair to Nicky Kelly. I am on record both in the print media and in RTE as saying, before there was any pardon and when it was not profitable or popular to do so — the dates, times and places I can supply to this House if anybody has any doubts — that Nicky Kelly's case should be reinvestigated. I read the transcript of the trial and I was unhappy with it. Before there was any question of a pardon I said that a case should have been answered on behalf of Nicky Kelly. I did not hear a peep from Deputy McDowell while the former Deputy Pat McCartan, some Fine Gael Deputies and I were talking about Nicky Kelly. When the match is over and when it is profitable to talk about the case we hear Deputy McDowell speak in his high moral tone.

I said yesterday we did all we could.

We recommended to the President that she grant Nicky Kelly a pardon and accordingly this was granted. What is in dispute now is the exact legal effect of a pardon. In law — I am talking about technicalities — does it set the conviction aside? The short answer is that I do not know. The term "pardon" appears in the Constitution and like many other words and phrases in the Constitution it has never been interpreted by the courts. Under the terms of the Constitution only the courts can interpret that and set the parameters or the limits to the term "pardon". We cannot do that here. We are given no power in the Constitution to regulate or define the meaning of the term "pardon". Somebody mentioned that Nicky Kelly or somebody else who was a victim of a miscarriage of justice and who subsequently got a pardon might bring a declaratory action. That would be a good thing because it would come before the courts and we could know exactly what it means in law. That is all I have said and that is all I will say on the matter.

In her contribution yesterday Deputy O'Donnell made what I regard as a good point. It was a much more solid point than all the nonsense we heard from Deputy McDowell. What we had from him was a performance from start to finish. Obviously when people come in here from the Four Courts the performance goes on — it is very difficult to readjust. Deputy O'Donnell said that Article 13.6 refers to the right of pardon and to the power to commute or remit. If I interpret her correctly she is saying that the Constitution, of necessity, is a document where words are not wasted and as the two expressions are used in Article 13.6, obviously pardon must mean something more——

There is a distinction.

——than simply commutation or remission. That is a good point. However, I still do not think that we are entitled to define the term "pardon". If somebody brought a declaratory action or the Supreme Court had to interpret the term "pardon", I could see them coming to the conclusion that it did legally set the conviction aside and I imagine one of the reasons they would come to that conclusion would be that outlined in the argument advanced by the Deputy yesterday. Yesterday I committed myself to getting a full written opinion from the Attorney General on this matter between now and the legislation being debated in the Seanad. If the Deputy wishes, I will furnish her with a copy of it. I give that commitment.

Deputy McDowell said there is nothing in the Constitution which states that pardons cannot touch guilt or innocence. The problem is that there is nothing in the Constitution which says exactly what a pardon means in law and, as I said, only the courts can interpret that.

Deputy McDowell referred to a letter on its way to me from the Bar Council, which was going to make us all run for cover. I understand it arrived this morning and, of course, I will study it carefully. When Deputy McDowell referred to the Bar Council sending me a letter, my interest was aroused because I thought it must be the letter I had been expecting for the past year and a half in reply to my letter about the ridiculous pieces of horse hair they wear on their heads to make the court atmosphere even more unreal to ordinary witnesses. I inquired 18 months ago what they proposed to do to change this nonsense and I got a sort of a reply that this matter was going before the dress committee for its adjudication.

Is it the dress or the dressage committee?

If you please, the dress committee were going to adjudicate on this weighty matter. To date I have had no response as to the result of the deliberations of the dress committee. It occurs to me that I am expecting another letter from the Bar Council, a response to a letter I sent some time ago which will explain the minimalist system of self-regulation. When we were debating the legislation to regulate solicitors, the Bar Council moved fast — there are some good politicians there — and brought in their own system of self-regulation, obviously to avoid being regulated by this House. They said they had all types of systems in place whereby retired judges would hear appeals and so on. I was able to monitor this by observing at a distance what happened to a number of complaints from my constituents. I now find that the terms of reference of that committee are minimalist and cover virtually nothing. I have written a letter asking them to explain exactly the terms of reference and I thought perhaps the letter to which Deputy McDowell referred was to tell me somebody had been found guilty and punished under the terms of reference of the committee. I will not hold my breath waiting for that letter. I will, of course, examine the Bar Council's submission on this legislation.

Deputy McDowell said also that people serving sentences of 15 years will have nothing better to do than think of ways to get out of prison and that in this Bill we are putting in place a system whereby they can appeal their cases. He claimed they will have nothing better to do than dream up all types of schemes and ways of getting witnesses to make statements that will support their case, that the Court of Criminal Appeal will be flooded with spurious applications and that the barbarians will come out of Mountjoy, Limerick and Portlaoise and storm the gates of the Court of Criminal Appeal. He was repeating the arguments he had made on Second Stage but they are about as solid as Legoland.

The reality is that Deputy McDowell agrees with the recommendations of the Martin committee. The committee proposes that somebody who is the victim of a miscarriage of justice should have further recourse to the law; in fact, it suggests a tribunal. We are providing that it can be either a court or a tribunal. If Deputy McDowell agrees with the recommendation of the Martin committee that people can make a case to a tribunal, does not the same argument apply? He says that prisoners sitting in cells will be dreaming up schemes, but equally will they not be dreaming up schemes to bring before a tribunal? Is it not likely that if they could only come before a tribunal the chancers to whom he refers would come out of the woodwork because a tribunal is not constrained by the same rules of evidence in regard to admissibility as a court would be?

Let us take the case of somebody who has no case at all but dreams up a scheme which is supported by an alibi witness who will swear falsely. If that person presents primary evidence to the Minister for Justice that is admissible, it is likely that he will refer him to the court. If he has to go to court he will know that if his witness admits he committed perjury before or if he attempts to commit perjury on this occasion and is caught that would give the witness cause for thought. On the other hand a witness can swear all he likes before a tribunal because there is no possibility of a prosecution for perjury under the terms of the legislation setting up tribunals.

Is it not more likely that more people will wish to appear before tribunals because, as well as being able to call the alibi witness, they will be able to call people with hearsay evidence? For example, a witness might claim that Deputy Gay Mitchell said Deputy De Rossa was 50 miles away from the scene of the crime and another witness might say that he heard Deputy Gay Mitchell say that in Blanchardstown shopping centre. The appellant can produce several witnesses giving hearsay evidence and everyone is entitled to be heard. Whatever else, Deputy McDowell should not base his claims on numbers.

On the question of people clogging up the Court of Criminal Appeal, I wonder if Deputy McDowell has read the Bill properly. Section 2 provides that the only person who can claim an alleged miscarriage of justice before the Court of Criminal Appeal or before the Minister for Justice under section 7 will be a person who has already gone through the entire appeal system. Deputy McDowell knows perfectly well that only a small percentage of people who are convicted by either the Circuit Criminal Court or the Central Criminal Court go through the entire appeal procedure and on to the Court of Criminal Appeal. I have the statistics for 1991 and 1992 showing the number of people who went right through to the Court of Criminal Appeal, and therefore the pool of applicants who could come back under this legislation. In the legal year 1991-92 nine people appealed against convictions and sentence, 19 people appealed against conviction only and 62 people appealed sentence only. That is the total pool. Of that number I do not think that those who went to the Court of Criminal Appeal and appealed only against the sentence will be returning alleging a miscarriage of justice because there is an implicit admission of guilt when one only appeals against the length of sentence. The potential pool is very small indeed and newly discovered facts will be necessary to support coming back to the court to show there has been a miscarriage of justice.

Deputy McDowell's fears that the barbarians will be battering down the gates of the Court of Criminal Appeal are so far from reality that they belong to the realm of total fantasy. He was worried by the fact that one can return to the Court of Criminal Appeal and on the grounds of a miscarriage of justice have one's sentence reduced. The Deputy suggested it would be better for the Minister for Justice to use her normal powers to commute sentences. How well has Deputy McDowell read this Bill before coming in here to make sarcastic, scurrilous criticisms of it? A subsection in the Bill specifically states that the powers of the Minister for Justice in that regard are undisturbed. If a prisoner feels that his sentence should be reduced and he does not want to go back to the court, he can appeal to the Minister for Justice under the 1951 Act.

When I first read the Bill I wondered if it was logical to allow people to go back to the court to seek a reduction in sentences. Having reflected on it I concluded it is right that this alternative system should be provided. Deputies will be aware that the Minister for Justice gets quite a few cases under the 1951 Act. I am afraid that if a person with a genuine reason for requesting a sentence to be reduced went to the Minister for Justice, due to the volume of cases going there, the depth of the inquiry would not be sufficient to allow the Minister to know whether she should help. If a person fails with the Minister there is nothing wrong with giving him the right to go back to the court. Deputy McDowell made the case that we are being unfair to prisoners, but I am leaving this here in the interest of the person claiming a miscarriage of justice while the Minister's existing powers remain undisturbed.

Deputy McDowell was also worried about how the Court of Criminal Appeal would function when new evidence was brought before it. The Deputy says that at the moment if somebody takes a case to the Court of Criminal Appeal the court will read the transcript and consider whether the judge applied the law properly, if the jury could have reasonably reached its conclusion on the facts and whether the judge properly directed the jury. Deputy McDowell asks how the Court of Criminal Appeal will assess new evidence. If ever I heard a disingenuous argument from a practising senior counsel, that was it; it takes the biscuit. As somebody who appeared before the Court of Criminal Appeal, Deputy McDowell will be aware that as the law stands a person appealing an ordinary case to the Court of Criminal Appeal can adduce new evidence and the Court of Criminal Appeal has the right to deal with it. The procedure here is simply that instead of new evidence being brought before the Court of Criminal Appeal in some cases, new evidence will inevitably be before the Court of Criminal Appeal in every case and the procedure will be exactly the same as it is now.

Deputy McDowell referred to the Birmingham Six case and how the Court of Criminal Appeal treated the evidence of Mrs. Joyce Lynass. The Deputy brought disingenuousness to a fine art in making his case. I was not at the Court of Crimi-Appeal for the hearing of the Birmingham Six case but from newspaper reports I can make a fair estimate of what happened. Deputy McDowell did not claim to have been there so I assume he is also working from media reports. Many years after the Birmingham Six had been put in prison an application was made to the Home Secretary, who is the filtering system in the UK, for the case to be brought back before the Court of Criminal Appeal. The application was accepted and ultimately the case came back to the Court of Criminal Appeal. There were two witnesses, a policeman who had been sacked from the police force and Mrs. Lynass who had been a prison officer. Mrs. Lynass gave solemn sworn evidence which was 100 per cent at variance with the solemn sworn evidence she had given at the initial trial. Counsel for the other side cast considerable doubt on her veracity as a witness. With regard to the other witness, it was shown that he was convicted of larceny. That happens in the courts every day of the week.

Not a week passes without a person telling the truth in a civil or criminal court being disbelieved while somebody lying through his teeth is believed. Skilled barristers will cast doubts on the credibility of witnesses, some people are not good witnesses while others are practised liars. Because of that wrong decisions will continue to be made. We cannot make the system perfect since we are dealing with human beings. Deputy McDowell will be aware of the adage — to err is human.

The Birmingham Six case subsequently returned to the Court of Criminal Appeal on the basis of forensic evidence which showed conclusively that the conviction was unsafe and unsound. Deputy McDowell says that because the Birmingham Six were ultimately released, both Mrs. Lynass and the policeman should have been believed in the original appeal as they were telling the truth. When the match is over, one can say that everyone should have known that somebody was telling the truth all along, no matter what doubts were cast on the evidence and no matter what reasons the Court of Criminal Appeal had for not believing the witnesses.

If a case comes before a court here today and the judge takes one view of the facts because he believes somebody and the case goes to an appeal and the appeal court believes somebody else, it should not be assumed that the judge in the original trial had a hidden motive for not believing the person in the first place. Hardly a week goes by without truthful witnesses being disbelieved in the courts. There are cases in which I am perfectly sure people have been telling the truth but they have not been able to get it across in court while people who were telling lies convinced the court. The outcome also depends on who is representing the person. To take one case where this happened and deduce that the Court of Criminal Appeal was acting with an ulterior motive stemming from a reluctance to overcome a previous decision made by the court is fantasy, an argument unworthy of Deputy McDowell, an Opposition spokesman.

Deputy McDowell is also worried that when this legislation is implemented barristers will make more money. The profession is not noted for its altruism and Deputy McDowell is worried that the effect of this Bill is that they would make more money. Can one imagine Deputy McDowell is worried about it? If the Martin committee report is accepted and we have a tribunal instead of a court, does Deputy McDowell imagine that people going back to a tribunal will go on a wing and a prayer and be prepared to go into a tribunal with one arm hanging as long as the other, or does he imagine that TDs, county councillors and so on will represent people before tribunals?

Does Deputy McDowell believe the same system would apply and that barristers would probably make more money because more people would take their case to tribunals? Perhaps the Deputy is concerned about something else and I misunderstood him. Perhaps he wants us to hold more tribunals even though we are all aware of their history and of how lucrative they can prove for barristers. I do not need to expand on that aspect except to ask if it is the reason the Deputy wants us to hold only tribunals. People in glasshouses should not throw stones.

Deputy McDowell stated the system I am introducing will completely ignore witnesses who wish to change their evidence, in other words, people who claim they committed perjury in the first place, are suffering remorse and want to vindicate the accused by saying they told lies and want the accused released. To say in the clearest possible language, as Deputy McDowell did, that such cases are not provided for in the legislation is a patent and downright misrepresentation. Such cases were specifically referred to by the Martin committee and provided for in the legislation. If the Director of Public Prosecutions does not agree that such witnesses should not be prosecuted for perjury the correct mechanism for the victim of the miscarriage of justice is to apply to the Minister for Justice to set up a tribunal. We have introduced legislation governing the establishment of tribunals of inquiry so that the evidence of witnesses would not subject the witness to a subsequent charge of perjury. We have specifically provided for such cases and to say, as Deputy McDowell did, that we have not is a downright misrepresentation. That is the strongest I am allowed to put it under the rules of the House.

Deputy McDowell was concerned about the term "newly discovered fact" and wanted to know what it meant. He wanted to know if the evidence of a garda was in question because he lied in another case, would the courts be compelled to accept his evidence and if that would be a newly discovered fact. Deputy McDowell agreed with the report of the Martin committee which recommended that people should have recourse to a tribunal, but that would be possible only in the case of new evidence. One can call it a newly discovered fact, a new issue or a new matter as described by the Martin committee, but the same difficulties in respect of interpretation will arise if one accepts that people should have recourse to some mechanism. We have defined the term "newly discovered fact" and Deputy McDowell is well aware that every possible eventuality cannot be provided for in legislation. The courts will have to interpret what the term means in the same way as they would have to interpret what the term meant had the Martin committee report been accepted in its entirety. The courts will decide on the facts of each case. That is how the law operates and for Deputy McDowell to pretend otherwise is nonsense.

Deputy McDowell was concerned also about the question of finality. At present if a person is convicted of a criminal offence in the Central Criminal Court or the Circuit Criminal Court he or she can appeal to the Court of Criminal Appeal which will agree or disagree with the conviction. If a point of law is involved one can appeal to the Supreme Court but if a point of law is not involved the Court of Criminal Appeal has the final say. That is finality. The Martin committee recommends that a person who had gone through the system and whose conviction is upheld by the Court of Criminal Appeal can appeal the case again. Is this not a departure from finality with which Deputy McDowell agrees enthusiastically? I agree with the principle of finality in criminal law but, on the recommendations of the Martin committee, we are departing from that principle in the interest of justice. It will be departed from in the same way whether the mechanism to which one has recourse is a tribunal, a court or whether one has a choice.

Deputies O'Donnell, Mitchell and De Rossa made reasonable points which I will consider before the Bill goes to the Seanad. I am not convinced that the reasoning behind the Martin committee report supports its conclusions. The key pages of that report are 11 to 13. On page 11 the report states:

It is not impossible to conceive of cases in which, years after conviction, with all legal avenues explored and all appeal procedures exhausted, there might come to light a mass of cogent information and documentation inadmissible as evidence in court proceedings.

The Martin committee claimed that such a matter would not be suitable for going back to court. On page 12 of the report the committee claimed that in rare cases where evidence is inadmissible a tribunal is the proper mechanism. I agree with that proposal and we have provided for it. Under the heading "A Statutory Inquiry Body" the report states:

We have given this aspect of the matter the fullest consideration and have taken into account the many submissions received. As a result, we are of the view that in the circumstances envisaged (the only circumstances the committee has referred to are those involving inadmissible evidence) where substantial doubt may arise as to the propriety of a conviction...

Again, the committee recommended the mechanism of a tribunal but, again, we are talking only about cases where the evidence is inadmissible. Under this legislation people have recourse to a tribunal in such circumstances. Having reached that conclusion the committee then stated a hypothetical case in respect of perjury, to which Deputy McDowell referred last night. The report stated:

We have considered a hypothetical case in which, say 5 years after conviction, a prosecution witness, as a result of whose testimony the accused was convicted, develops qualms of conscience, and is prepared to admit that it was his perjury which brought about the conviction, and his forgery of the vital document supporting such perjury, which resulted in the miscarriage of justice. The reality of the situation is that such a person, despite his remorse, may be entirely unwilling to testify in Court proceedings, unless given immunity from prosecution for perjury and forgery, a course which the Director of Public Prosecutions, in the proper exercise of his functions, may well refuse to take, thus effectively precluding any remedy for the miscarriage of justice within the Court structure.

I agree with that proposal and have provided the mechanism of a tribunal for people in such circumstances. Without any further reasoning the Martin committee concluded that in no case should a person be allowed go back to court. The proposals in the Martin committee report do not support that conclusion and I challenge any Member or anybody outside the House to point out the reasoning in it which supports the conclusion that a person should be entitled to have recourse to a tribunal, and only a tribunal, even if the case is suitable only for a court hearing. I failed to find such a conclusion in the report.

Deputies Mitchell, De Rossa, Gilmore and O'Donnell made some cogent remarks. However, Deputy McDowell presented a farrago of nonsense, a performance from start to finish. He is suffering from a serious handicap in that he believes passionately that any opinion which differs from his is irrelevant. I have news for him. He is not in the House at present; if he is practising his profession he is before the judges he so highly regards. I withdrew a remark yesterday because Deputies De Rossa and Mitchell took umbrage and that was my only reason for withdrawing it. I was not directing my comments at those Deputies and they should have no misapprehension in that regard. If Deputy McDowell did not intend casting a slur on the Judiciary I must take his word for it. He stated that he must take my word for anything I say in the House and the same applies to me in regard to what he says here. He stated that the Court of Criminal Appeal in the United Kingdom deliberately closed its eyes to new evidence because it was unwilling to reverse a conviction. That type of conduct from a Court of Criminal Appeal would make the people in question unworthy to sit on the bench.

Deputy McDowell is concerned that the Court of Criminal Appeal here will adopt a similar attitude. He was concerned that when this legislation was put into effect and the Court of Criminal Appeal established, the two High Court judges and the Supreme Court judge would take the same irresponsible attitude. That is the reason, as I understand it, he is worried about a case being referred back to the court. That is what he said and I drew a conclusion as to his attitude towards the bench from those remarks. I can understand the English language as well as anyone else and I am entitled to draw whatever conclusions I like. If that was not his intention, I have to take his word for it, but I have to point out that there is good evidence to support the conclusion I reached.

Yesterday evening Deputy McDowell was het up because I had accused him of saying something about somebody else. He claimed he did not say this. That was the only accusation I made; I did not accuse him of anything directly or say anything about him. I accused him of saying something about somebody else. What about his performance here yesterday evening? Does he not feel he should apologise to the House? He launched a scurrilous, sarcastic and snide attack on officials who cannot come into the House to answer for themselves. He implied that they were ignorant, ill-informed and specifically and explicitly called them weak-minded. Is that the right language to use about people who cannot answer for themselves?

He also implied that anyone who was not practising at the Bar was not the appropriate person to draft Justice legislation. That argument could be applied in many directions, as I am sure Deputy McDowell and others would be surprised to learn. Deputy McDowell is sensitive and thin-skinned when people accuse him of saying something about somebody else, but let us remember what he said directly about those who cannot come in here to defend themselves. I do not want to get involved in a debate where such terminology is used, particularly about people who cannot answer back.

Shortly after I was appointed I was present in the House during Question Time with the Minister for Justice, Deputy Geoghegan-Quinn, when Deputy McDowell said to her that if she thought she was going to act the hard woman with him she had better think again. I have another message for Deputy McDowell today: if he thinks he is going to act the hard man with me he had better not waste his time or breath. While other Deputies advanced additional reasons to those advanced by the Martin committee in its report for referring a case back to a tribunal only, Deputy McDowell made no point. Rather he made a sarcastic and abusive speech. If he thinks he can influence me by hectoring, bullying and blackguarding I have to tell the House that he is even further detached from reality than I imagined.

Deputies G. Mitchell and O'Donnell rose.

I understand that Deputy Mitchell has spoken already.

Are we not entitled to reply to the amendment?

Acting Chairman

No, the only person who is entitled to reply is Deputy De Rossa.

Will we get an opportunity in turn?

Acting Chairman

No.

On a point of order, I have nine amendments.

Acting Chairman

The Deputy has already spoken. Is that correct?

That is so, but so has Deputy De Rossa.

Acting Chairman

I am merely asking the question. Has the Deputy spoken already?

Acting Chairman

Then the rules of the House do not permit the Deputy to speak a second time.

I understand that when a Deputy moves an amendment and Members speak to it he is entitled to reply to the debate.

Acting Chairman

Not when they are taken together. The only person who is entitled to speak is Deputy De Rossa.

The Ceann Comhairle made it very clear yesterday that if we agreed to take these amendments together we would have an opportunity to reply.

Acting Chairman

No, Deputy.

I am clear on this point. I asked yesterday whether if we agreed to take the amendments together we would be allowed to reply and he said "if the House so agrees".

Acting Chairman

It is my understanding that once amendments are taken together and a Deputy has spoken he may not reply. The only person who may reply is the person who proposed the first amendment and that is Deputy De Rossa or Deputy Gilmore.

The House can vary any rule. Yesterday, before we agreed to take these amendments together, the House agreed that Members would be allowed to reply.

Acting Chairman

I have not been so informed.

I am informing you now. Are you doubting my word? I am sure the Minister of State will agree.

I have no objection.

Acting Chairman

I will operate in accordance with the instructions I have received which are that the only person who is entitled to speak is Deputy De Rossa.

May I propose, with the agreement of the House, that those Members who have tabled amendments be allowed to reply?

Acting Chairman

I am in a quandary. I would have no objection, but it is my understanding that no one may speak a second time.

We can do this with the agreement of the House. It is my understanding that we did this before we agreed to take the amendments together. Otherwise, I would not have agreed to the proposal that they be taken together in the first instance. I understand that in any event there is agreement across the House.

Acting Chairman

On Report Stage when amendments are taken together every proposer has an opportunity to speak but the only one who has an opportunity to reply is the mover of the first amendment.

We are going around in circles here; I moved——

Acting Chairman

You are, yes.

No, Sir, we are. Yesterday, when the Ceann Comhairle asked if it was agreed that these amendments be taken together — I had previous experience of this on Committee Stage — I agreed on the understanding that I would have an opportunity to reply. This was agreed. There is no doubt about this and if there is, I now propose that this should be the case. The Minister of State is nodding in agreement. There is no difficulty about this.

I have no objection.

Acting Chairman

I certainly have no objection but I have explained the situation.

But the House has agreed. The Minister of State has no objection, so what is the difficulty?

We have until 1.30 p.m.

It is of no material difference to me but I take it that the only amendment before the House is the one in the name of Deputy Gilmore and even if we agree to enable the other spokespersons to reply to the debate the vote will be on the amendment I moved.

On a point of order——

Acting Chairman

Please, let Deputy De Rossa finish.

I have nine amendments before the House.

On a point of order——

I am entitled to make a point of order.

Deputy Mitchell, I am already on my feet on a point of order.

I am entitled to make a point of order.

The Deputy is a bully boy.

I want to make my point of order.

The Deputy is a bully boy.

The Deputy is not talking to the Ceann Comhairle now so he should restrain himself.

The Deputy is a bully boy.

I want to make a point of order. I am entitled to make it.

The Deputy is a bully boy.

I will call a vote on each of these amendments and we will be here all day, if necessary.

The Deputy is a bully boy.

I am entitled to make a point of order.

I was on my feet on a point of order.

My point of order is that there is not just one amendment before the House, there are nine in my name and, if necessary, we will vote on every single one of them. It was not my intention to do so.

I do not care.

The Deputy is entitled to do that if he wants to.

If that is what the Deputy wants to do, fine. We are not going to save any time. If the House agrees, I should be allowed to reply to these amendments.

Acting Chairman

The Deputy cannot set aside Standing Orders without notice.

We gave notice yesterday. If this is the case, we are going to vote on every single amendment. This is nonsense.

Acting Chairman

It is regular procedure.

It is not. It has happened in the House before.

On a point of order, the only way to resolve this matter is for the Ceann Comhairle to come back into the Chair and establish order. I was on my feet on a point of order when Deputy Mitchell rudely interrupted me.

Acting Chairman——

May I continue?

Acting Chairman

Please, Deputy Mitchell, let Deputy De Rossa speak.

Deputy De Rossa said that his amendment was the only one before the House. It is not.

Acting Chairman

Deputy De Rossa to continue without interruption.

We will vote on every single amendment.

If Deputy Mitchell would cool down for a minute and hear me out he would not misconstrue what I am saying. What I was trying to clarify was that I had no objection to Deputy Mitchell replying to the debate or, indeed, Deputy O'Donnell, but I wanted to make it clear that the amendment that would be put to the House was the one that I moved yesterday.

No, each one will be put in turn.

In turn, the Deputy can put his amendments to a vote, if he wishes, but the first vote will be on the amendment I moved yesterday. That is the point I wanted to make and instead of getting het up and trying to grab a headline——

The Deputy gets het up most mornings. He is no saint.

The Deputy is trying to grab a headline.

The Deputy gets himself turfed out regularly for being disorderly.

The Deputy might have saved some time.

Acting Chairman

Deputy De Rossa to continue without interruption.

The Deputy cannot lecture us.

The Deputy is a bully boy.

I was never put in prison for bullying anybody. The Deputy should not use that tactic here. He should keep it to himself.

You see the kind of scurrility that Deputy Mitchell gets into.

If you cannot take it, do not give it out.

He likes to "hang 'em and flog 'em" and abuse them.

Are you going to let him speak like that, a Chathaoirligh?

Acting Chairman

Let us hear Deputy De Rossa, without interruption.

God forbid that he should ever become Minister for Justice because we would have one big prison.

If I was, you and your likes would not be running around the streets.

I think the House is being brought into disrepute by this scrap between the Deputies.

The scrap is not of my making, I assure the Deputy. I am being subjected to abuse from Deputy Mitchell, of which he is quite capable.

If I were Minister for Justice I would put behind bars people who should be behind bars.

Have you any evidence, Deputy?

Acting Chairman

I would ask Deputy De Rossa to please continue and confine his remarks to the amendment.

I regret very much that Deputy Mitchell has chosen to go into the gutter on this occasion.

You provoked it by your behaviour in this House, you and your fellow-travellers.

You are astonishing.

Do not provoke me now.

(Interruptions.)

You are quite appalling, do you know that?

Acting Chairman

Deputy Mitchell, please allow Deputy De Rossa to speak without interruption. I am asking the House for co-operation.

I am not sending to Moscow looking for money from the Communist regime.

It would be nice to know who you get your money from——

I do not get it by printing money and writing to Moscow.

——because it is unusual how you are able to do the job you do——

You need not worry. We do not print money or write to Moscow.

It would be nice to see precisely what you do declare.

Acting Chairman

Please allow the proceedings of the House to continue.

I will not let the proceedings of the House continue if Deputy De Rossa is making personal remarks uncontrolled by the Chair.

There is no doubt but that you are a joke.

Acting Chairman

Deputy De Rossa, without further interruption.

On the Bill, the Minister said he had only departed slightly from the Martin report. In my contribution on the amendment yesterday I pointed out that the idea of setting up a tribunal as proposed in the Martin report had been effectively abandoned by the Minister. I accept that the Minister has indicated that he will bring forward the regulations in regard to video recordings in the context of the Criminal Justice Act, 1984 which I spoke on at the time, the implementation of which has been long delayed. The Minister has also accepted the principle of statutory compensation for people against whom wrongful convictions have been made.

However, the core of the Martin report was the proposal that a tribunal should be established to enable people who felt they had been wrongly convicted to bring their case forward to that tribunal. In responding to the case made, the Minister indicated that he felt there was no reasoning in the Martin report against allowing at least some of those cases to go before the Court of Criminal Appeal. My understanding is that the Martin committee felt that the Court of Criminal Appeal was not a suitable body before which such appeals should be brought and they gave a range of reasons for that, one of the most critical being the manner in which the Court of Criminal Appeal deals with new evidence.

I am not a lawyer and I do not pretend to know the ins and outs of how the courts work, despite the allegations of Deputy Mitchell, but I understand that the Court of Criminal Appeal is not enabled to decide on the veracity of particular facts; it can decide that if certain information had been presented to a jury it might have reached a different decision and, therefore, the Court of Criminal Appeal may make a decision based on its view in relation to that. It is not enabled to actually rehear the trial that resulted in the conviction. The Martin committee felt therefore that the Court of Criminal Appeal was not the most suitable body to hear such appeals. That is the crucial point in relation to how this legislation has been dealt with.

In the short few hours I have dealt with this Bill, I very much appreciate the manner in which the Minister has been prepared to consider various points made by Deputies on the Opposition benches. He has indicated his willingness to look at what might be regarded as peripheral issues relating to the Bill. However, he has stuck rigidly to his point of view that the Court of Criminal Appeal should be maintained as an agency which would rehear cases of this kind. For that reason it is necessary for me to put the amendment I moved yesterday to a vote.

Deputy G. Mitchell rose.

Acting Chairman

That terminates the discussion on the amendment.

I am entitled to speak.

Acting Chairman

You would have been entitled to speak before Deputy De Rossa spoke but I did not realise that you wished to do so.

I did not realise I was constrained in that way.

Acting Chairman

In that case, if you wish to speak, you may.

Will I be given an opportunity to reply? We can avoid wasting time on nine separate votes if I am given a few minutes to reply to this debate. This nonsense has gone too far. I want to make it very clear that there will be nine separate votes unless I am given a few minutes to reply to this debate.

Acting Chairman

I would be interested in being flexible with the Deputy, but my instructions are as I have outlined.

Your only instructions are from the House, Chairman, and the House has resolved that there is no difficulty about people who have tabled amendments replying to them. I can keep the House going all day with divisions. However, I have no desire to do that. I only intended pressing a vote on one or two amendments. All I need is a few minutes to reply, and I would be very happy with that.

If it assists the House, I have no objection to either Deputy Mitchell or Deputy O'Donnell replying; I would like to hear what they have to say.

Acting Chairman

We cannot set aside Standing Orders without notice.

I have given you notice. If you want to put the House through a series of divisions for the rest of the day, that is fine.

Acting Chairman

You are going to do it.

I am exercising my rights as a Member of the Dáil to do so. You, as Chairman, are ignoring the wishes of this House stated both before the amendments were taken and now and you have brought up the temperature in this Chamber totally unnecessarily by sitting there making these remarks.

On a point of Order, a Chathaoirleach, in view of the attitude of Deputy Mitchell, I withdraw my agreement to allowing him to speak——

I am not surprised that Deputy De Rossa does not want people to speak.

——and therefore he cannot go ahead without the full agreement of the House.

The Deputy did not want the workers in Poland to speak. Did he not agree in private session to support Jaruzelski against the workers in Poland? He is being consistent.

Acting Chairman

Deputy Liam Fitzgerald, without interruption.

I will endeavour to be extremely sensitive and will not in any way attempt to drive the wedge any further between the two Deputies. These amendments address the most fundamental issue in the Bill that all parties want to address. It was the area of greatest concern on Committee Stage and also on this Stage. On Committee Stage I expressed serious reservations, having read and studied the Martin report. I felt the Minister was not giving due regard to the concerns mentioned in that report and I pleaded with the Minister to look in greater depth at the Martin recommendation on the question of a tribunal. That he promised to do.

I studied carefully what the Minister had to say in reply on Committee Stage. I am not a lawyer and know little about court procedures, but I am concerned that there could be cases where certain evidence would not be admissible in court. Therefore I question the wisdom of adopting a dual approach whereby certain cases would be heard again by the Court of Criminal Appeal and others would go before a tribunal.

Having heard the Minister's comments on the report of the Martin committee my concerns have been eased to a great extent. I do not see in the report of the Martin committee the clear evidence to which Deputy De Rossa referred and which he claims proves his case. I seem to be re-echoing what the Minister said, but there is a strong case to be made for his point of view. Regarding the two cases the Minister cites, he has clearly stated on Committee and Report Stages that such cases would be referred to a tribunal and would not be suitable for referral to the Court of Criminal Appeal. There are sufficient guarantees in the Bill that no case which is inappropriate for referral to the Court of Criminal Appeal will be referred to that court. If the tribunal provided under the legislation is similar to that recommended by Judge Martin, I see no difficulty in taking on board the dual approach as distinct from the single approach recommended in the report of the Martin committee.

On a point of order, the Acting Chairman departed from the Standing Order by allowing Deputy Fitzgerald reply after the debate on the amendments had concluded.

That is the Chair's prerogative.

I ask the Chair to be consistent in its ruling and to allow a brief reply from this side of the House.

Acting Chairman

Deputy Fitzgerald was allowed speak because I had overlooked his request to speak earlier. Is the amendment being pressed?

The Chair departed from the Standing Order which provides that when the debate on an amendment is concluded no Member is entitled to speak on it. I ask the Chair to be consistent in its ruling.

Acting Chairman

I was lenient in that case.

The Chair is not being lenient in this case. The Chair is being absurd in its ruling. A good deal of the time of the House will be taken up voting on the nine amendments I tabled and the Chair is putting me in the position of having to press those amendments in each case in order to make my case.

Acting Chairman

I will rely on the Deputy's sense of justice not to take such action.

I have relied on the Chair's sense of justice and it has varied in its treatment of Members on one side of the House but not in regard to Members opposite. That is inexplicable. Given that there is agreement between the Minister and myself, this matter would have been concluded in a few minutes. I wish the Acting Chairman would not do what the Clerk tells him but would act in the manner in which Members require him to act.

The Deputy is out of order in referring to the Clerk.

Acting Chairman

Is the amendment being pressed?

I ask that the Ceann Comhairle be sent for if the Acting Chairman is not prepared to apply the rules of the House evenly. The Chair has allowed Deputies opposite to reply following the conclusion of the debate on the amendments and has informed me that I may not speak on the nine amendments I tabled. That is unacceptable. The Chair has been varied in its ruling and has departed from Standing Orders.

Acting Chairman

The Deputy knows the rules of the House.

We will be voting for the remainder of the day, if necessary, on the nine amendments I tabled.

The Minister indicated he would be interested in our response to his response. I would like to put on the record that I will defer to the Chair's ruling but I would have liked the opportunity to respond to some of the points the Minister raised. Perhaps there might be an opportunity, following the vote on this amendment, to respond to some of the points the Minister raised, particularly in relation to Deputy McDowell's contribution yesterday. It would be appropriate for me to correct some of the comments made by the Minister.

Acting Chairman

Perhaps the amendment can be recommitted so that any Member who wishes to speak may do so.

Bill recommitted in respect of amendment No.2.

I draw to the attention of Members an error in amendment No. 21, circulated as a substitute amendment, which appeared as amendment No. 22. There is something fundamentally wrong with the Bill in that it does not provide for the recommendations in the report of the Martin committee. It is extraordinary that Deputy McDowell made such a rambling concerned speech about this section of the Bill when he, as a barrister and one of the most skilled Members, did not draft an amendment to this Bill. That is strange, particularly when I tabled this amendment on Committee Stage as well as Report Stage. If he was so concerned about this matter I do not understand why he did not table an amendment.

His name is on both amendments. Our joint names are on all the amendments tabled by the Progressive Democrats.

No detailed amendment has been tabled by the Deputy's party to the section providing for the replacement of the court by a tribunal. The only amendments have been tabled by Deputy Gilmore and myself and they outline how the tribunal should operate. I would have thought Deputy McDowell would have tabled an amendment to this section as he made such a meal of this matter yesterday.

It is strange that no Labour Deputy spoke on Report Stage. This is an important Bill. I did not make a long speech about this matter yesterday. It is wrong to depart from the recommendations of the Martin committee which advocate a tribunal of inquiry rather than a court. The report stated that the Civil Evidence (Scotland) Act, 1989, which allows hearsay evidence, is the model which should be used in hearing evidence before a tribunal. The committee recommended that the model of the civil evidence Act should be followed in this legislation and that hearsay evidence, which cannot be heard in court, should be heard before a tribunal. Courts can only hear evidence based on the rules of evidence. In an appeal case it is desirable that the normal rules of evidence should be expanded to determine the truth and in such circumstances a tribunal would be more appropriate than a court.

I hope the Minister will shortly receive a reply to his letter to the Bar Council regarding the wearing of wigs. Under our justice system the law is above the lay person. Officers of a court are dressed in regalia and are separate from the lay person. The lay person is not informed about the law or justice; and there is a sense that he or she should do as they are told and take his or her medicine. The justice system separates the legal profession and judges from the lay person and that separation is a matter that should be considered. I am sure the Minister is not misleading the House, but he will be aware that there is an established dress committee in the Bar Council. The fact that there is such a committee speaks volumes for its attitude to the application of the law.

There are other problems also which I will not go into at this stage. As we are debating a Justice Bill, we should consider how the justice system is administered. I will be pressing amendment No. 4, which deals with the right to be heard before a tribunal. It is an important point and should be put to a vote.

I will need more time than what I am entitled to if I am to cover the various points raised by the Minister, but some points he raised are more important than others. I refute the allegation that members of our party slighted the Judiciary yesterday.

Our argument has always been that it is not a criticism of the Judiciary or the courts to believe that the best way to deal with a review of a miscarriage of justice is to opt for a tribunal of inquiry rather than a referral back to the court. That is the conclusion reached by the Martin committee and a view expressed by all parties in this House. It is based on the fact that the Court of Criminal Appeal is more used to determining matters of law arising from an appeal than issues of fact, which is what it would be expected to do in these cases. All miscarriages of justice involve massive investigation and inquisitorial powers which the courts do not have. That is why the Minister is choosing the second best option of the tribunal. My great concern is that the outcome at the end of the tribunal or pardon should be the same as if the case had gone back to the court, that is the quashing of the conviction. I could live with the existence of the dual route, but the outcome should be the same in both cases.

As Deputy McDowell said yesterday, experience in England, in the Guildford Four and Birmingham Six cases, has shown that the adversarial courts, by their nature and the rules which govern them, are not the appropriate fora in which to conduct the necessary inquiries in these cases, which involve the unravelling of a web of perjury, conspiracy, false confessions and police malpractice. Very important in these cases — this could be applied to miscarriage of justice cases here — is the political and media hysteria which surrounds the trial. The tribunal route is the best one in these circumstances. We believe that sections 7 and 8 would be adequate to deal with this matter on the basis that the effect of a pardon is clarified. The Minister clarified the Nicky Kelly case. I accept that he will seek the advice of the Attorney General as to whether it would be constitutional to legislate for the legal effects of a pardon.

The Minister clarified another matter today, that very few cases go to the Court of Criminal Appeal. Deputy McDowell, as a practitioner, expressed the view that there would be a proliferation of appeals to the Court of Criminal Appeal. I accept the Minister's point that the pool of potential referrals back to the court would be quite small, but the doubt remains that when there is a mechanism whereby a miscarriage of justice may be alleged on new facts, more cases may come before the courts. I welcome the existence of the dual route.

I will not get involved in the series of personal offences against Deputy McDowell. This has been going on for a long time between the Minister of State and Deputy McDowell, as lawyers, and there is an element of waiting for an opportunity to take a swipe at each other.

I was not aware of the letter from the Bar Council and I would be interested to know what is in it. Perhaps the Bar Council is expressing a view that it is concerned about the methods adopted in this legislation. Consultation with the Incorporated Law Society and the Bar is an appropriate procedure in all matters. This is a procedural Bill which fundamentally affects the operation of criminal trials and the normal appeals system. It is appropriate that there is as much consultation as possible and as many views as are appropriate heard, given that the Minister opposed the fundamental recommendation of the Martin committee relating to the court referral system.

Under the 1951 legislation the Minister is empowered to reduce sentences, this happens all the time. How prevalent is this practice? When sentences are reduced by the Minister it should be a matter of public record. The procedure should not be as simple as at present. The Minister has too much power to reduce sentences and remit punishment.

I am glad the Minister takes the point that as the law stands there is a lack of clarity on what a pardon means. It is important to clarify whether, for example, Nicky Kelly has to go to court to seek a declaratory action to determine the legal effect of a pardon. This is the solution we are offering to persons who have been the victim of a miscarriage of justice and it is important that the person is removed from all infamy and regains the status he held before the charges were made. Anything less is not good enough. I would be grateful if the Minister would let me have a copy of the Attorney General's advice in the matter. I am sure all Deputies would be interested in hearing that advice given the importance of Presidential pardons.

If one accepts the proposition put forward by Deputies O'Donnell and Mitchell that court is an inappropriate place for examination of a new fact which shows that there has been a gross miscarriage of justice and that as the court is concerned only with law it cannot in essence dispense justice, the logical conclusion to be drawn is that we should abolish criminal courts and set up tribunals to deal with all criminal cases. The argument has been put forward that the rules of evidence are too restrictive, the courts bound up in red tape and so on. The rules of evidence were drawn up after hundreds of years of experience. They were not drawn up for the fun of it or to wrap people in red tape; they were drawn up to ensure that a defendant in a criminal trial would get justice and fair play.

I am a little mystified that we are yet again debating my amendment. How does that happen?

(Interruptions.)

I presume one has to first bully the Chair and then have the rules changed in some way midway through the debate.

Acting Chairman

One is not compelled to discuss it.

I should like the Minister to clarify a point he made. He said that the courts are the only body which can define the constitutional reference to pardon. Is that correct? The main function of this House is to interpret the Constitution and make laws based on our views of what the Constitution says. Therefore, it seems to be entirely appropriate for this House to state in law what the reference to pardon in the Constitution means. Obviously, any citizen would be entitled to challenge that law and the courts would be entitled to state whether that law was right or wrong. This happens from time to time, but it does not happen too often. As a lay person, I am confused as to where the distinction arises.

My second point relates to the remark made by the speaker opposite that the courts are concerned with law, not justice. He said that he believed the reverse should be the case. In the nature of things courts decide whether or not the law is broken. We try to frame our laws in such a way as to ensure that people will get justice at the end of the day. However, many people believe that while a decision was based properly on law — it was made in accordance with the law, the appeals procedure was gone through and the decision was upheld — it was not necessarily a just decision. As more eminent speakers have said, the relationship between justice and the courts is not always obvious. It is sometimes perceived that the courts tend to interpret and define the law rather than ensure that justice is done. One is probably more likely to get a flexible interpretation of the law in the lower courts in terms of the decision made by the justice, based on what he thinks is fair.

The key issue in relation to the tribunal is that the Martin committee believed it was not appropriate to refer cases of miscarriage of justice to the Court of Criminal Appeal. I have not yet heard an adequate explanation as to why the Government, having established the committee to make recommendations, has taken a contrary view and decided to ignore that specific recommendation. I have to qualify what I am saying, as obviously the Government has taken on board some of the recommendations. However, it has ignored the key recommendation in the report.

With regard to Deputy De Rossa's point about the Martin committee, it is not unusual for the Government to set up a committee to make recommendations on changes in any area of the law or procedure and to take on some or all of those recommendations. In other words, it is not unusual for the Government to change or ignore some of the recommendations.

I will outline what happens in such cases. The committee gives its recommendations to the Department of Justice which, instead of repeating the recommendations verbatim, is entitled to look at them to see if what it wishes to achieve can be achieved in a better way. If it is thought that the law in a certain area needs to be changed, the Law Reform Commission is normally asked to examine the law and make recommendations. Deputies who are familiar with the Law Reform Commission will know that it submits outline legislation. I do not think the Department or indeed any Opposition party has ever accepted the recommendations of the Law Reform Commission verbatim — changes are always made. The legislation put forward by the Department is not accepted verbatim either. After debate in the House, the Minister may see reason to change certain provisions.

Therefore, it is not revolutionary for the Government to decide not to implement to the letter the recommendations of a committee. This is the case in regard to all recommendations made by the Law Reform Commission and other committees which have made recommendations to the Government. For example, a committee set up in 1990, under the chairmanship of Mr. Justice Costello, recommended, I think, 92 changes in the law relating to charities. Those recommendations will not be carried through verbatim. The Department will see reasons for changing some of them; and when legislation is brought before the House, the Government, if it is prepared to be flexible — and this Government is — will accept amendments from the Opposition. As Deputies will be aware, Governments sometimes change legislation by way of amendment during its passage through the House. The point I am making is that nobody has a monopoly on justice, whether it is the Department of Justice, Deputies in this House, the Law Reform Commission, the Martin committee or some other committee. The extent to which the Government has accepted the recommendations in the Martin committee report is much greater than the extent to which it has accepted some of the recommendations made by the Law Reform Commission.

Deputy O'Donnell thought I accused her of casting a slight on the Judiciary. I did not intend to do this. I did not have Deputy O'Donnell, Deputy De Rossa or Deputy Mitchell in mind when I made those remarks. If Deputy McDowell says he did not intend to cast a slur on the Judiciary, of course I have to accept what he says. However, I repeated what he said and gave the conclusion I drew from it. That is my interpretation of the English language — I am entitled to interpret the English language in whatever way I want — and that is the conclusion I reached. However, if that was not the Deputy's intention, I accept that.

Deputy O'Donnell said that the Court of Criminal Appeal would not be the appropriate body to deal with cases of alleged miscarriages of justice because all those cases would involve inquisitorial type inquiries. That is not correct. In some cases the newly discovered fact could be a development in forensic science, a new witness, or simply a document which was missing. Therefore, the courts will not require massive inquisitorial powers in all cases. In cases where massive inquisitorial powers are required, I am almost certain that the proper route would be to have such cases heard by a tribunal set up by the Minister for Justice. That is why the word "appropriate" is used in section 7, which deals with referrals to the Minister for Justice. In addition, the present powers of the Court of Criminal Appeal, not just in relation to section 2 applications but also in relation to ordinary appeals, are being beefed up when an inquiry has to be made. For the first time ever the Court of Criminal Appeal is being given the power to direct the Garda Commissioner to conduct a Garda inquiry.

The basic point is that the Martin committee recommended that people who are victims of miscarriages of justice should go back to a tribunal in all cases, even if a case is perfectly appropriate for a court hearing. In other words, even if there is no inadmissible evidence, no perjurer wanting to come forward, and it is perfectly appropriate for the court to hear the case just like an ordinary appeal, the case should not go back to court. The reasoning outlined in the Martin report does not support that conclusion. Deputies have not yet outlined to me the specific reasoning in the Martin report which supports that conclusion, and I challenge them to do so. It does not. Therefore, as Deputy O'Donoghue has pointed out so eloquently, the case has to go back to court. People who say that all cases should go to a tribunal rather than a court have not given any conclusive reason for saying this. Neither can I find any reason in the Martin report for this.

My apologies to Deputy De Rossa, I did not answer his point in relation to a pardon. We pass legislation here which must be consistent with the Constitution. When legislation is being drafted we obtain the advice of the Attorney General's office as to whether that legislation is consistent with the Constitution. On occasions we are advised that it is and we proceed on that basis, someone then takes an action based on some section or subsection of the legislation and our advice is found to be wrong. They are only human in the Attorney General's office, we cannot say that something is definitely constitutional or unconstitutional. On occasions we are found to be wrong but by and large we get it right.

To say that when we are passing legislation in this House we must do so within the parameters of the Constitution is very different from saying that we can pass legislation here which takes a term from the Constitution and effectively says that the word "pardon" in article 13.6 of the Constitution has a particular meaning. I do not believe this House has that power. When one takes a specific term from the Constitution which requires definition, I believe the court is the only place where that definition can be given. That is my understanding of the Constitution but I intend to research the matter further.

There is a precedent in the Offences Against the State Act, 1939, in regard to the statute to which I referred.

Deputy De Rossa Rose.

Carlow-Kilkenny): Deputy Gay Mitchell had indicated he wishes to contribute. I realise the previous Acting Chairman was dealing with Deputy De Rossa but I am instructed that because the amendment has been recommitted, Members are entitled to make brief relevant points.

The Minister has replied and I am now replying.

Acting Chairman

Deputy Mitchell can contribute at this stage so with the Deputy's help we can proceed to the remaining amendments.

On a point of order, I would appreciate if someone would explain to me precisely what is going on.

The Deputy is part of it.

Acting Chairman

The normal procedure on Report Stage is that only the proposer of the amendment has the right to reply, even if other amendments have been tabled. That arose with a Minister on the last occasion I was in the Chair. However, because of what took place earlier, the amendment has been recommitted which gives Members the right to contribute again.

But Members have come back in again and the Minister has replied.

Acting Chairman

When everyone is satisfied we will proceed to the next amendment.

Without a time limit?

Acting Chairman

As long as it is reasonable.

So we are now on Committee Stage?

Acting Chairman

The ruling is that the Deputy can speak now if he wishes.

I am simply trying to clarify whether we are on Report Stage or Committee Stage. As I understand it, on Report Stage those who wish to contribute do so, the Minister replies, the proposer of the amendment then replies to the debate and that concludes the debate. In what way is this situation different?

Acting Chairman

This is the equivalent of a Committee Stage debate.

Nobody has yet explained to me how that has happened.

A Deputy

It just evolved.

Acting Chairman

Deputy De Rossa will understand I have just taken over the Chair and my instructions are that the amendment has been recommitted. Deputy Foxe is offering.

This situation came about because I allowed Deputy Liam Fitzgerald to contribute. I had not noticed earlier that he wished to speak and because I allowed him in after the mover of the amendment, Deputy De Rossa, had spoken, it was recommitted and Members were then entitled to speak to the amendment.

Are Members entitled to speak as long and as often as they wish?

Acting Chairman

Common sense will prevail but it does not seem to at this stage.

I intend to be brief because I made my points on Committee Stage and also yesterday. The Martin report recommends the establishment of a statutory inquiry body under the Tribunal of Inquiries Act and against referral to the Court of Criminal Appeal. It states: "We doubt, however, whether references to the courts system would necessarily prove effective in establishing the truth". It is unfair to say that because Members are highlighting the point made by the Martin committee, which was chaired by a judge, they are therefore saying that the courts are not competent to make judgements in the normal sense. No one is saying that. Of course the courts are the appropriate place for that——

In the circumstances mentioned, but the Deputy should look at the circumstances.

We are talking in this instance about an exception, where someone feels exceptionally that there were facts which were not considered and which they wished somehow to resubmit.

They are not the circumstances we are talking about.

The Martin report also states that the Civil Evidence (Scotland) Act, 1989, which allows hearsay evidence in certain circumstances is a model that could be followed. The committee came to that conclusion following submissions from many eminent people, including some who are now Ministers in this Government, former Ministers and former Members of this House and others who have nothing to do with politics. That is what these people said and other Members should not say that we on this side of the House are saying that the courts are not competent. We are simply asking, as is our duty as Opposition spokespersons, what good and valid reason exists to depart from the recommendations of a very powerful committee chaired by a judge. No reasons have been put forward here and I suspect that there are those who have put their spoke in to prevent the implementation of those recommendations. The Minister says he has not been influenced by judges in this matter but I understand that judges were consulted. This House should carry more weight than the judges. This is a legislative matter and I see no reason we should not adopt the recommendations of the Martin committee, particularly as they are spelled out clearly in his report.

Am I concluding the debate at this stage or does some other Member wish to contribute?

Acting Chairman

Does the Deputy wish to speak?

I do not particularly, I had concluded half an hour ago.

It is clear from the debate that the Minister has followed his brief very closely in not adopting the key element of the Martin report and on that basis I have no option but to press my amendment.

Amendment put.
The Dáil divided: Tá, 40; Níl, 80.

  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Connaughton, Paul.
  • Connor, John.
  • Cox, Pat.
  • Crawford, Seymour.
  • Crowley, Frank.
  • Currie, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Dukes, Alan M.
  • Durkan, Bernard J.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Foxe, Tom.
  • Harney, Mary.
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kenny, Enda.
  • Lowry, Michael.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McManus, Liz.
  • Mitchell, Gay.
  • Molloy, Robert.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East)
  • O'Donnell, Liz.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • Quill Máirín.
  • Shatter, Alan.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Noel.
  • Andrews, David.
  • Aylward, Liam.
  • Bhamjee, Moosajee.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Broughan, Tommy.
  • Browne, John (Wexford).
  • Burke, Raphael P.
  • Burton, Joan.
  • Callely, Ivor.
  • Connolly, Ger.
  • Costello, Joe.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Davern, Noel.
  • Dempsey, Noel.
  • Ferris, Michael.
  • Fitzgerald, Brian.
  • Morley, P. J.
  • Moynihan, Donal.
  • Moynihan-Cronin, Breeda.
  • Mulvihill, John.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Fitzgerald, Eithne.
  • Fitzgerald, Liam.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Pat the Cope.
  • Gallagher, Pat.
  • Haughey, Seán.
  • Higgins, Michael D.
  • Hilliard, Colm M.
  • Hughes, Séamus.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenneally, Brendan.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McDaid, James.
  • McDowell, Derek.
  • Moffatt, Tom.
  • Penrose, William.
  • Power, Seán.
  • Reynolds, Albert.
  • Ryan, Eoin.
  • Ryan, John.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Treacy, Noel.
  • Upton, Pat.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Woods, Michael.
Tellers: Tá, Deputies McManus and O'Donnell; Níl, Deputies Dempsey and Ferris.
Amendment declared lost.

We come now to amendment No. 3 in the name of Deputy Gilmore, which has already been discussed with amendment No. 2.

I move amendment No. 3:

In page 3, between lines 30 and 31, to insert the following:

"3. —A case may be referred to the Committee by—

(a) the Attorney General,

(b) the Minister for Justice, or

(c) a resolution passed by the Legislation and Security Committee of Dáil Éireann,

Where a person has been convicted on an offence either.

(i) on indictment, or

(ii) after signing a plea of guilty and being sent forward for sentence under section 13 (2) (b) of the Criminal Procedure Act, 1967, and

who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence and where there are reasonable grounds for believing that a new or newly-discovered fact shows that there may have been a miscarriage of justice in relation to the conviction or that the sentence imposed was excessive.".

Amendment put and declared lost.

We come to amendment No. 4 in the name of Deputy Gay Mitchell.

I move amendment No. 4:

In page 3, to delete lines 31 to 33 and in page 4, to delete lines 1 to 39 and substitute the following:

"2. —(1) The Minister for Justice is hereby authorised to set up an independent body of inquiry to be known as the Tribunal to Review Alleged Miscarriages of Justice and which shall have power to—

(a) enforce the attendance of witnesses, and their examination on oath, affirmation or otherwise;

(b) compel the production of documents;

(c) issue a commission or request to examine witnesses outside the jurisdiction;

(d) hold in contempt, similar to contempt of the High Court, a person who

(i) on being duly summoned as a witness, without just cause or excuse disobeys the summons, or

(ii) being in attendance as a witness refuses to testify when legally obliged to do so, or without just cause fails to produce documents, or

(iii) wilfully gives material evidence which he knows to be false or does not believe to be true, or

(iv) by act or omission obstructs or hinders the inquiry in the performance of its functions, or

(v) fails, neglects or refuses to comply with the provisions of an order made by the Committee, or

(vi) does or omits to do something which, if the Tribunal had been the High Court, would have constituted a contempt of that Court.

(2) The Tribunal shall be constituted and shall have the same powers as if it were a tribunal established under the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979.

(3) A person——

(a) who has been convicted of an offence either——

(i) on indictment, or

(ii) after signing a plea of guilty and being sent forward for sentence under section 13 (2) (b) of the Criminal Procedure Act, 1967, and

who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the convictions or that the sentence imposed is excessive,

may, if no further proceedings are pending in relation to the appeal, apply to the Tribunal for a recommendation that the Court should make an order quashing the conviction or reviewing the sentence.

(4) Subsection (3) shall not apply to a person who has entered a plea of guilty to an offence unless he also alleges that if the new or newly-discovered fact had been known to him at the time he entered the plea he would not have entered it.

(5) An application under subsection (3) shall be treated for all purposes as an appeal against the conviction or sentence.

(6) The reference in subsection (3) (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court.

(7) Where——

(a) after an application by a convicted person under subsection (3) and any subsequent re-trial the person stands convicted of an offence, and

(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,

he may apply to the Tribunal for a recommendation that the Court should make an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection.

(8) A statement or admission made by a person before the Tribunal shall not be admissible as evidence against that person in any criminal proceedings other than those of the Court under subsection (3) or (7).

(9) Evidence taken by the Tribunal shall not be excluded by the Tribunal solely on the ground that it is hearsay.

(10) A recommendation and any report of the Tribunal under this section shall be admissible in the Court as evidence for the purposes of proceedings of the Court under subsection (3) or (7) to quash a conviction or to review a sentence.".

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 77; Níl, 35.

  • Ahern, Dermot.
  • Ahern, Noel.
  • Andrews, David.
  • Aylward, Liam.
  • Bhamjee, Moosajee.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Broughan, Tommy.
  • Browne, John (Wexford).
  • Burton, Joan.
  • Callely, Ivor.
  • Connolly, Ger.
  • Costello, Joe.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Davern, Noel.
  • Dempsey, Noel.
  • Ferris, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Eithne.
  • Fitzgerald, Liam.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Pat the Cope.
  • Gallagher, Pat.
  • Higgins, Michael D.
  • Hilliard, Colm M.
  • Hughes, Séamus.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenneally, Brendan.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, James.
  • McDowell, Derek.
  • Moffatt, Tom.
  • Morley, P.J.
  • Moynihan, Donal.
  • Moynihan-Cronin, Breeda.
  • Mulvihill, John.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Penrose, William.
  • Power, Seán.
  • Reynolds, Albert.
  • Ryan, Eoin.
  • Ryan, John.
  • Ryan, Seán.
  • Shortally, Róisí.
  • Smith, Brendan.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Treacy, Noel.
  • Upton, Pat.
  • Wallance, Dan.
  • Wallace, Mary.
  • Woods, Michael.

Níl

  • Ahearn, Theresa.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Connaughton, Paul.
  • Connor, John.
  • Cox, Pat.
  • Crawford, Seymour.
  • Crowley, Frank.
  • Currie, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Durkes, Alan M.
  • Durkan, Bernard J.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Gregorey, Tony.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Carey, Donal.
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kenny, Enda.
  • Lowry, Michael.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McManus, Liz.
  • Mitchell, Gay.
  • Nealon, Ted.
  • Noonan, Michael.
  • (Limerick East).
  • O'Keeffe, Jim.
  • Shatter, Alan.
  • Yates, Ivan.
Tellers: Tá, Deputies Dempsey and Ferris; Níl, Deputies E. Kenny and Boylan.
Question declared carried.
Amendment declared lost.

Since amendment No. 4 has been negatived, amendments Nos. 5, 6, 7 and 8 cannot now be moved. We proceed, therefore, to amendment No. 9 in the names of Deputies Michael McDowell and O'Donnell. This amendment has already been discussed with amendment No. 2.

I move amendment No. 9:

In page 4, to delete lines 40 to 48, in page 5, to delete lines 1 to 49 and in page 6, to delete lines 1 to 3.

I do not intend to press the amendment, but I thought I might take the opportunity to thank the Minister of State for his gracious remarks about me this morning, in my absence.

That is not in order now, Deputy.

I assure the Minister that every word he said will be listened to carefully and will be given all the attention it deserves.

Amendment, by leave, withdrawn.

Amendment No. 10 in the name of Deputy Gay Mitchell was also discussed earlier with amendment No. 2.

I move amendment No. 10:

In page 5, line 20, to delete "Commissioner of the Garda Síochána" and substitute "Attorney General".

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 72; Níl, 31.

  • Ahern, Dermot.
  • Ahern, Noel.
  • Andrews, David.
  • Aylward, Liam.
  • Bhamjee, Moosajee.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Brennan, Matt.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Burton, Joan.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Pat the Cope.
  • Gallagher, Pat.
  • Higgins, Michael D.
  • Hilliard, Colm M.
  • Hughes, Séamus.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenneally, Brendan.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, James.
  • McDowell, Derek.
  • Moffatt, Tom.
  • Morley, P.J.
  • Moynihan, Donal.
  • Callely, Ivor.
  • Connolly, Ger.
  • Costello, Joe.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Davern, Noel.
  • Dempsey, Noel.
  • Ferris, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Eithne.
  • Fitzgerald, Liam.
  • Moynihan-Cronin, Breeda.
  • Mulvihill, John.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Power, Seán.
  • Ryan, Eoin.
  • Ryan, John.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Treacy, Noel.
  • Upton, Pat.
  • Wallace, Dan.
  • Wallace, Mary.
  • Woods, Michael.

Níl

  • Ahearn, Theresa.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Carey, Donal.
  • Connaughton, Paul.
  • Connor, John.
  • Cox, Pat.
  • Crawford, Seymour.
  • Crowley, Frank.
  • Deenihan, Jimmy.
  • Dukes, Alan M.
  • Durkan, Bernard J.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Flaherty, Mary.
  • Flanaghan, Charles.
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kenny, Enda.
  • Lowry, Michael.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mitchell, Gay.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East).
  • O'Keeffe, Jim.
  • Shatter, Alan.
  • Yates, Ivan.
Tellers: Tá, Deputies Dempsey and Ferris; Níl, Deputies E. Kenny and Boylan.
Question declared carried.
Amendment declared lost.

Amendment No. 11 was discussed with amendment No. 2. How stands the amendment?

I move amendment No. 11:

In page 5, to delete lines 45 to 48 and substitute the following:

"(7) A legal aid certificate which was granted in relation to the trial of an accused person shall have effect as if it had been granted also in relation to an application under section 2 and, if the court has ordered a re-trial under this section, in relation to his re-trial.".

May I seek your guidance, Sir? If I press this amendment to a Vote does that mean we will have to have another Vote after this one because of the guillotine at 1.30 p.m.? If I do not press the amendment to a Vote, will we be able to vote on everything at 1.30 p.m.?

That is correct.

Therefore, I will settle for a voice vote.

Question,"That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 12 to 14 inclusive, not moved.

I move amendment No. 15:

In page 7, between lines 14 and 15, to insert the following:

"(d) who has two consecutive sentences amounting, in total, to not less than one year imposed on him by the District Court,".

I made this point on Committee Stage. I propose that paragraph (d) of my amendment should be inserted in the legislation because it is possible for a person to receive a sentence of up to 12 months from the District Court in such circumstances. In the normal course of events if that person can subsequently provide evidence that he or she is not guilty of the offence or evidence that would allow for a re-examination, it is not possible for such persons to have recourse to the rehearing process. The Minister may argue that recording evidence in the District Court is not available, but that is regrettable. There is no reason transcripts of evidence in the District Court should not be available. If a person receives two consecutive sentences in the District Court totalling one year and can subsequently prove that he or she is innocent of the crime as charged he or she should be able to have the case reheard. The Minister may argue that such persons have recourse to the normal appeal procedure of the Circuit Court. But a great deal of time may have elapsed and the transcript of evidence would not be available to the Circuit Court, even if a long time had elapsed. In the case of summary offences there should be some mechanism in which an appeal procedure can be included.

We are dealing with amendment No. 15, Deputy Mitchell referred to the wrong amendment. Amendment No. 15 would provide that if a person did not want to or could not go to court, he or she could petition the Minister for Justice. In amendment No. 15 Deputy Mitchell seeks to insert a condition that if a person is convicted in the District Court he or she will have to have been imprisoned before petitioning the Minister for Justice. As the legislation stands, such people can petition the Minister for Justice for a pardon even if they have not been imprisoned and given the benefit of the probation act. Deputy Mitchell's amendment would be more unjust to a victim of a miscarriage of justice than the legislation as drafted.

As it is now 1.30 p.m. I am required to put the following question in accordance with an Order of the Dáil: "That the amendments tabled by the Minister for Justice and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and that the Bill is hereby passed."

Question put and declared carried.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.